Alto et al v. Salazar et al

Filing 94

ORDER denying without prejudice the portions of the Tribe's motion to dismiss 70 left unresolved by the Court's prior order 82 . As appropriate, the Tribe may refile these unresolved portions of its motion to dismiss upon resolution of its appeal. Signed by Judge Irma E. Gonzalez on 2/21/13. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERT P. ALTO, et al.,

CASE NO. 11cv2276 – IEG (BLM)
Plaintiffs,

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ORDER DENYING WITHOUT
PREJUDICE UNRESOLVED
PORTIONS OF THE TRIBE’S
MOTION TO DISMISS

vs.
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KEN SALAZAR, Secretary of the
Department of Interior - United States of
America, et al.,

[Doc. No. 70.]

Defendants.

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On June 13, 2012, the Court denied in part and deferred ruling in part Intervenor San

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Pasqual Band of Mission Indians (the “Tribe”)’s motion to dismiss. [Doc. No. 82.] On June 19,

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2012, the Tribe filed notice of its appeal of the Court’s June 13, 2012 Order denying the Tribe’s

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motion to dissolve the preliminary injunction. [Doc. No. 87.] The filing of this notice of appeal

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divested the Court of jurisdiction. See Natural Res. Def. Counsel v. Southwest Marine, Inc., 242

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F.3d 1163, 1166 (9th Cir. 2001) (“Once notice of appeal is filed, the district court is divested of

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jurisdiction over matters being appealed.”); see also Kern Oil & Refining Co. v. Tenneco Oil Co.,

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840 F.2d 730, 734 (9th Cir. 1988) (this rule of divestment is “designed to avoid the confusion and

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waste of time that might flow from putting the same issues before two courts at the same time.”).

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Therefore, the Court DENIES WITHOUT PREJUDICE the portions of the Tribe’s motion to

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dismiss left unresolved by the Court’s prior order, [Doc. No. 82]. As appropriate, the Tribe may
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11cv2276-IEG (BLM)

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refile these unresolved portions of its motion to dismiss upon resolution of its appeal.
IT IS SO ORDERED.
Dated: February 21, 2013

______________________________

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IRMA E. GONZALEZ,
United States District Judge

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11cv2276-IEG (BLM)